Case summaries and commentary on recently decided criminal law cases in the Third Circuit provided by Federal Defenders and CJA Panel Attorneys.

Monday, September 28, 2009

A Civil Contempt Order, Which Confined the Defendant for 5 Years, Was Not a De Facto Criminal Contempt Order

In United States v. Harris, No. 08-1553, September 23, 2009, the Court of Appeals affirmed the denial of Harris’ motion to vacate an order of civil contempt.

Harris and several co-conspirators were indicted on conspiracy and fraud counts arising from the production and distribution of fraudulent financial documents. Following his indictment, he and his co-conspirators filed bogus financial documents that purported to create liens against the judges and prosecutors in their cases. The Government moved for a restraining order, which was granted. Despite the restraining order, the conduct of Harris and his co-conspirators continued.

A show cause hearing was held, at the conclusion of which, Harris and his co-conspirators were held in civil contempt and ordered to be incarcerated until they stopped the activity involving the bogus financial documents. Harris’ co-conspirators ceased the activity - Harris did not. Consequently, his incarceration on the contempt order began thereafter in April of 2004. Several months later, Harris went to trial on the underlying federal charges and was convicted on all counts. He was sentenced to 188 months imprisonment.

Still, after the conviction, Harris continued to send out bogus financial documents - as a result, he remained incarcerated on the civil contempt order for the past 5 years, which has tolled the commencement of his 188 month term of imprisonment.

In 2007 Harris filed a pro se motion with the District Court arguing the lack of jurisdiction of the federal courts - the District Court interpreted the motion to be one requesting the termination of the civil contempt sentence. That motion was denied in 2008.

On appeal, Harris argued that the contempt order was a de facto order of criminal contempt (rather than civil contempt) and therefore argued that it must be lifted for two reasons: 1) that the district court cannot continue to hold him after the termination of his initial criminal proceeding; and 2) that due process provides a temporal limitation on the district court’s contempt authority. The Third Circuit rejected both arguments.

As to the first argument, the Court of Appeals held that the termination of the underlying proceeding did not render the contempt order moot - rather, the contempt order remains ripe until and when Harris ceases to harass the judges and prosecutors. Therefore the decision to deny the motion to vacate was not an abuse of discretion.

As to the second argument, the Court of Appeals refused to adopt Harris’ argument that his case was analogous to that of the recalcitrant witness who refused to testify - that the continued incarceration of one where there is "no substantial likelihood" they will ever comply, should cease. The Court held his circumstances distinguishable - that in his case, he held the keys to his release and that the Court would not "dissolve a lawful order ... merely because the contemnor persists in violating it."

The Court ultimately disagreed that the civil contempt order in Harris’ case became a de facto criminal contempt order holding that an "order of civil contempt will only become punitive if a contemnor is unable to comply with the order, or if the circumstances indicate that a court is maintaining the contempt for an impermissible punitive purpose." Here, Harris made the choice to continue the conduct - the civil contempt order is in place to coerce him to stop. Again, he has the keys to his release and the order does not, under these circumstances, violate due process.

In the concurring opinion, Judge DuBois, noted that when confinement pursuant to a civil contempt order ceases to become coercive it loses its remedial effect and becomes punitive and that under those circumstances the contemnor must be released and prosecuted for criminal contempt (with the right to a jury trial). Neither the majority nor Judge DuBois suggest a set time limit for release and subsequent criminal prosecution. Judge DuBois does, however, suggest that a district court in these circumstances must determine whether continued confinement continues to have the coercive effect - if not, then release and prosecute. (BARRY, SMITH, and DuBOIS, majority opinion by BARRY, concurring opinion by DuBOIS).